SATYA POOT MEHROTRA,RAJESH CHANDRA,J - (1.) CIVIL Misc.Delay Condonation Application No.274311 of 2009 has been filed on behalf of the Appellant-Insurance Company, inter-alia, praying for condonation of delay in filing the Appeal Having regard to the averments made in the said application and its accompanying affidavit, we are satisfied that sufficient cause has been made out for condoning the delay in filing the Appeal. The aforesaid Delay Condonation Application is accordingly allowed. The delay in filing the Appeal is condoned. The Registry is directed to give appropriate regular number to the Appeal. Having condoned the delay in filing the Appeal, the Court is proceeding to consider the Appeal on merits. The present Appeal has been filed against the Order dated 18.7.2009 passed by the Workmen's Compensation Commissioner awarding compensation amounting to Rs.4,03,320/- in favour of the claimant-respondent nos. 1 to 3 on account of the death of Rajeev Kumar in an accident which took place on 26.2.2008 when the said Rajeevv Kumar was driving Vehicle No. UP-14AH- 9443 as Driver in the employment of the Owner of the said Vehicle,namely, Bhagwan Singh ( respondent no.4 herein).
(2.) THE claimant-respondent nos. 1 to 3 filed an application for award of compensation under the Workmen's Compensation Act, 1923, inter- alia, stating that the said Rajeev Kumar was appointed as Driver by the said Bhagwan Singh ( respondent no.4 herein) for the aforesaid Vehicle in question, and was working as such for the last one year; and that the said Bhagwan Singh ( respondent no.4 herein)j was registered owner of the aforesaid Vehicle in question while the Appellant-Insurance Company was the insurer of the said Vehicle; and that the said Bhagwan Singh ( respondent no.4 herein) used to pay to the said Rajeev Kumar, Rs.4000/- per month as salary and Rs.50/- per day towards diet expenses. It was, inter-alia, further stated in the said Application that the said Rajeev Kumar was taking the aforesaid Vehicle in question from Ghaziabad to Shamli on 26.2.2008; and that when the said Rajeev Kumar reached near Hasanpur Butrari, the aforesaid Vehicle in question overturned in an effort by the said Rajeev Kumar to save a cyclist coming from the opposite direction; and that as a result, the said Rajeev Kumar sustained serious injuries, and he was admitted in Vohra Nursing Home, Shamli for treatment where the Doctors declared the said Rajeev Kumar as dead; and that the said Rajeev Kumar was aged 32 years at the time of the accident. It was, inter-alia, further stated in the said Application that at the time of the accident, the said Rajeev Kumar was in employment of the said Bhagwan Singh ( respondent no.4 herein) as Driver, and he was driving the aforesaid Vehicle in question under the orders of the said Bhagwan Singh (respondent no.4 herein). Written Statement was filed by the said Bhagwan Singh (respondent no.4 herein). It was, inter-alia, stated in the said Written Statement that the said Bhagwan Singh ( respondent no.4 herein) was the registered owner of the aforesaid Vehicle in question; and that at the time of the accident, the said Rajeev Kumar was in employment of the said Bhagwan Singh ( respondent no.4 herein) as Driver of the aforesaid Vehicle in question, and the said Rajeev Kumar was being paid salary of Rs.4,000/- per month. It was, inter-alia, further stated in the said Written Statement that on 26.2.2008, the said Rajeev Kumar was in employment of the said Bhagwan Singh ( respondent no.4 herein) as Driver of the aforesaid Vehicle in question, and he was driving the aforesaid Vehicle in question under the instructions of the said Bhagwan Singh, i.e. the Owner of the Vehicle in question. It was, inter-alia, further stated in the said Written Statement that the said Rajeev Kumar was having a valid Driving Licence; and that the aforesaid Vehicle in question was insured for the period from 31.12.2007 to 30.12.2008; and that no condition of the Insurance Policy was violated by the said Bhagwan Singh; and that the aforesaid Vehicle in question was insured on the date of the accident. The Appellant-Insurance Company filed its separate Written Statement denying the averments made in the Application filed on behalf of the claimant-respondent nos. 1 to 3. The Appellant-Insurance Company, inter-alia, denied the averments made in the said Application regarding the employment of the said Rajeev Kumar as Driver of the aforesaid Vehicle in question and regarding the payment of Rs.4,000/- per month as salary to the said Rajeev Kumar. It was, inter-alia, further denied that the said Rajeev Kumar was acting under the instructions of the owner of the said Vehicle at the time of the accident, and the said Rajeev Kumar died during the course of employment. It was, inter-alia, further denied that the said Rajeev Kumar, the Driver of the aforesaid Vehicle in question, was having a valid and effective licence at the time of the accident. On behalf of the claimant-respondent nos. 1 to 3, Smt.Sangita (claimant-respondent no.1-widow of the deceased Rajeev Kumar) was examined. She proved the averments made in the aforesaid Application filed on behalf of the claimant-respondent nos. 1 to 3. She was cross- examined also. Documentary evidence filed on behalf of the claimant-respondent nos. 1 to 3 was also proved by the said Smt.Sangita( claimant-respondent no.1) in her statement. No evidence was led on behalf of the Appellant-Insurance Company or on behalf of the Owner of the aforesaid Vehicle in question ( respondent no.4 herein). The Workmen's Compensation Commissioner on consideration of the material on record held that the said Rajeev Kumar was in the employment of the said Bhagwan Singh (respondent no.4 herein) as Driver of the aforesaid Vehicle in question at the time of the accident. The aforesaid Vehicle in question was insured with the Appellant-Insurance Company on the date of the accident. The said Rajeev Kumar was being paid Rs.4,000/- per month as salary. The age of the deceased Rajeev Kumar at the time of the accident was 33 years in view of the copy of the Driving Licence of the said Rajeev Kumar. On the basis of the said findings, the Workmen's Compensation Commissioner held that the claimant-respondent nos. 1 to 3 were entitled to compensation amounting to Rs.4,03,320/- on account of the death of the said Rajeev Kumar in the aforesaid accident. The Appellant-Insurance Company has filed the present Appeal impugning the aforesaid Order passed by the Workmen's Compensation Commissioner. We have heard Sri Viqar Ahmad Ansari, learned counsel for the Appellant-Insurance Company, and perused the record filed with the Appeal. It is submitted by Sri Viqar Ahmad Ansari, learned counsel for the Appellant-Insurance Company that there was no proof of the salary of the deceased Rajeev Kumar, and the Workmen's Compensation Commissioner assumed the salary of Rs.4,000/- per month without any basis. We have considered the submission made by Sri Viqar Ahmad Ansari, and we find ourselves unable to accept the same.
(3.) FROM a perusal of the record, it is evident that in the Application filed on behalf of the claimant-respondent nos. 1 to 3 (Annexure 2 to the Affidavit accompanying the Stay Application), it was, inter-alia, stated that the deceased Rajeev Kumar was being paid Rs.4,000/- per month as salary and Rs.50/- per day as diet expenses by the said Bhagwan Singh ( respondent no.4 herein). Smt.Sangita (claimant-respondent no.1), who was examined as a witness on behalf of the claimant-respondent nos. 1 to 3, in her statement, inter-alia, reiterated that the said Rajeev Kumar was being paid salary of Rs.4,000/- per month and Rs.50/- per day towards diet expenses by the Owner of the aforesaid Vehicle in question, namely, Bhagwan Singh (respondent no.4 herein). In the Written Statement filed on behalf of the said Bhagwan Singh ( respondent no.4 herein-Owner of the Vehicle in question), it was, inter-alia, admitted that the said Rajeev Kumar was in his employment as Driver of the aforesaid Vehicle in question, and the said Rajeev Kumar was being paid salary of Rs.4,000/- per month. No evidence was led by the Appellant-Insurance Company to prove to the contrary. In the circumstances, the Workmen's Compensation Commissioner rightly recorded finding that the said Rajeev Kumar was being paid salary of Rs.4,000/- per month. The said finding is based on the assessment of evidence, and the same does not suffer from any perversity or illegality. ;